Steps in the determination process

Last updated: 9 November 2023

Once you have made an application for a determination, there are several stages to the decision-making process. These stages are outlined below.

Receive and consider the application

When MBIE receives an application for a determination the first step is for us to make sure the dispute is something we can consider as set out in the Building Act. It is important for applicants to consider the grounds of the application and complete all relevant sections of the application form.

To assist us to quickly assess the validity the application needs:

  • clearly identifiable parties (parties in a determination)
  • A valid dispute or question which relates to the Building Act 2004
  • Any relevant supporting documentation necessary for us to make a decision (such as approved drawings or copies of correspondence from Council), and an itemised summary, setting out your views
  • The application fee. 

We may contact the applicant to clarify the matter being disputed.

The applicant must contact the other parties at the same time as applying to MBIE. This includes providing them with a complete copy of the application. If you’re applying with the paper PDF form, you must also send them part two of the form to complete.

We will advise these parties whether the application has been accepted and what to expect.

You may wish to appoint an agent to manage the determination application on your behalf. Agents can include people such as a family member, a builder, an engineer or architect, a technical advisor, or a lawyer.

Assess application and gather information

Our next step is to look at all the information provided with the application. While assessing the information provided we may identify issues for which we require more information. Such information is often necessary to ensure that we are able to make a determination.

If we have all of the relevant information required to see if a determination is eligible, we will give you an answer regarding the status of your application within 10 working days.

If all the relevant information is not provided this will result in delays and may also result in us making a decision based on only the information originally provided.

You can ask for an extension if you are unable to provide the information in the timeframe requested.

The information provided to MBIE by parties throughout the determination process (including the application and associated documents, and any subsequent submissions) will be kept confidential within the Determinations team. It will only be shared with people authorised to view the information, such as any technical experts that MBIE may engage. It is expected that the parties to the determination application will also keep the information confidential.

Hold a technical meeting, if appropriate

The decision on whether to hold a technical meeting will be at MBIE's discretion.

We sometimes use the help of technical experts and referees to make sure our decisions are fair and appropriate.

Legal representation is not necessary, although you can appoint someone (an agent) to attend and speak on your behalf if you wish. We will not make a decision at a technical meeting.

Issue final determination

We will issue the final determination or decision after all parties have had the chance to provide their views and after any technical meeting (if one is held).

The final determination will be published on Building CodeHub as public information. The decisions are helpful guides for others who are seeking how to interpret the Building Act when resolving disputes.

Parties can request a final determination be amended to clarify any minor issues (called a 'clarification'). Clarification requests must be made within 20 working days of the determination being issued. Clarifications are at the discretion of MBIE, and cannot be made if an appeal has been filed.

Appeal the determination, if appropriate

If any party disagrees with the determination they have the ability to take the matter to court.

  • The District Court can decide whether the determination decision was correct – this is called an appeal.
  • The High Court can decide whether the determination-making process was correct and fair – this is called a judicial review.

If you want to appeal the determination you must do so within 15 working days from when the determination was issued (or clarified, if a clarification is made). If MBIE decides not to clarify a determination, the appeal period remains 15 working days from the date of the determination. You may consider seeking legal advice.

This information is published by the Ministry of Business, Innovation and Employment’s Chief Executive. It is a general guide only and, if used, does not relieve any person of the obligation to consider any matter to which the information relates according to the circumstances of the particular case. Expert advice may be required in specific circumstances. Where this information relates to assisting people: